Upcoming Supreme Court case could force Ottawa to overhaul consultation with Indigenous communities

The Supreme Court of Canada is set to hear arguments next month in a case that could lead to a major consultation overhaul

Kenneth Jackson
APTN National News
The Supreme Court of Canada is set to hear arguments next month in a case that could lead to a major overhaul of the way the federal government consults Indigenous communities on energy projects.

Two cases are to be heard together beginning Nov. 30 to essentially settle an argument: Does the National Energy Board (NEB) execute the Crown’s duty to consultation with Indigenous communities through its public consultation process?

A First Nation in Ontario and an Inuit community in Nunavut argue it doesn’t.

“No Crown actor, including a tribunal exercising delegated authority, can make a decision that ignores or is contrary to the Crown’s constitutional obligations to Aboriginal Peoples,” the Chippewas of the Thames First Nation state in their statement of facts filed with Canada’s highest court.

The NEB is not a Crown agent, but part of the executive branch of the federal government, and makes recommendations to Ottawa on whether energy projects should proceed. The federal cabinet then gives final approval.

In the case of the Chippewas, located near London, Ont., they opposed Enbridge’s interest in expanding and reversing the flow on a large portion of an existing oil pipeline that stretches approximately 830 km from Sarnia, Ont. to Montreal, Que. The section of pipeline in question is known as Line 9B, and was constructed in 1975.

The Chippewas assert treaty and title rights to the land the pipeline crosses. They feared, in part, the project could disrupt their hunting rights if there was a pipeline leak.

The NEB gave its approval of the project on March 6, 2014, with 36 conditions, and found any potential damage to Indigenous land was “likely minimal and would be appropriately mitigated.”
In doing so, the NEB urged the federal government to approve the project.

The board also ruled its consultation process was, in fact, the same as though the Crown had been doing it. Ottawa agrees with this and is filed documents in the Supreme Court stating so.

“The adjudication carried out by the Board is open, transparent, expert and effective in addressing the concerns of Aboriginal people,” the Crown says. “The process and decisions of tribunals such as the Board appropriately uphold the honour of the Crown and give effect to the constitutional recognition of Aboriginal rights in section 35.”

The Chippewas wanted the federal government involved all along and requested a dual consultation process, and say the entire process failed to have what they describe as meaningful consultation.

“In fact, the Crown did not participate in the (NEB’s) proceeding, notwithstanding repeated requests by the Chippewas First Nation for the Crown to engage in consultation regarding the Proposed Project,” said the First Nation’s filing. “Neither the Crown nor the (NEB) at any time engaged in meaningful consultation with the Chippewas First Nation regarding the nature of their asserted Aboriginal rights and interests or the potential impact of the (NEB’s) decision on those rights and interests.”

Shortly after the NEB’s approval, on April 8, 2014, the Chippewas asked the Federal Court of Appeal to reject the decision based on the premise that the NEB’s consultation did not meet the standard of consultation.

The appellate court ruled against them, but it wasn’t a majority ruling.

Justice Donald Rennie believed the NEB was obligated to decide whether “a second independent Crown consultation had occurred, and was obligated to withhold its regulatory approval if it had not.”

The board simply didn’t “express an opinion” on the issue, believing its consultation was suffice.

In Nunavut, a similar situation was unfolding at the same time.

On June 26, 2014, the NEB approved Petroleum Geo-Services to conduct seismic testing in the waters of Baffin Bay and Davis Strait off the coast of Baffin Island in Nunavut.

The testing would happen 24 hours a day, five months per year for five years, something the Hamlet of Clyde River and other interested parties oppose.

They feel the testing is harmful to marine mammals, including narwhal, ringed seal and the bowhead whale – something the Inuit rely on for their food and culture.

“At stake in this appeal is not only the health of Arctic marine animals and their ecosystem, but the continued survival and centuries-old way of life of an entire people,” the Hamlet of Clyde River states in its appeal to the Supreme Court.

They, too, sought a judicial review at the Federal Court of Appeal, arguing the NEB didn’t properly consult and there was no talks between the Ottawa and the affected Inuit communities.

Like the Chippewas, the appellate court ruled against them.

The Hamlet of Clyde River is asking the Supreme Court to “quash” the NEB ruling.

For the Chippewas, they’re now developing what they call a protocol to deal with future projects that may come across their land.

“We know of the damaging impacts of the tar sands, fracking, and other extractive industries have on our earth yet these developments continue with government protection,” said band Coun. Myeengun Henry in a press release issued Wednesday. “We believe that ​protecting the water and land, requiring sustainable development, adapting to climate change, and ensuring a safe home for future generations must be central to this protocol.”

APTN was unable to reach Henry.

Henry said in the release the pipeline was first put in during the era of Indian residential schools and the community was never consulted.

“When there was a process that brought this pipeline through our traditional territory, we were never consulted at all. So they just built this pipeline without any acknowledgement of the First Nations in the area,” Henry said.

Henry added they are struggling to pay for the legal costs expected for their fight next month. They’ve raised $50,000 of the $500,000 they say is needed.

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3 thoughts on “Upcoming Supreme Court case could force Ottawa to overhaul consultation with Indigenous communities

  1. When it comes to Aboriginal Rights; if they say no to mines or pipelines; that should be the final verdict on any more leaky pipelines being built on their land. It’s their land; their future.

  2. I saw a map revealing all the pipeline leaks in Alberta recently, and they were so many it was mind boggling. These pipeline builders and the oil companies obviously can’t build them strong enough, and without proper quality control to ensure they will not rupture. Even those who support more pipelines have to realize that these companies have safety at, or near the bottom of their list of priorities. How can anybody support this industry when the evidence points to incompetence, and a lack of proper oversight? Who can trust the pipeline builders when they say it is the safest way to transport Crude Oil? The Federal Government need s to have more robust oversight on existing pipelines. As far as building pipelines across 1st Nations land against their wishes; this evidence alone should be enough to stop any pipeline anywhere until the builders can prove they will not spill crude oil into the land. If 1st Nations say no; then no pipeline. It’s a matter of the life and death of the environment. No profits can undo the damage done.

  3. Canadian Constitutional guarantee: by the Glory of God and Rule of Law.
    The Supreme Court of Canada ruling on “Indian burden”:
    Federal Powers and Responsibilities
    Scope of Exclusive Federal Powers
    Indian lands
    The essence of the federal power with respect to Indian lands is that Parliament may legislate with respect to the land, especially as to the use and possession of the land, but the Crown in right of Canada does not necessarily have any property rights in the land. Indian lands are Crown lands which are subject to Indian title. The right of the Indians pursuant to their title are such that the underlying Crown title is really worthless so long as the Indian burden is in place. There is no practical use to which the Crown may put the land so long as the Indians retain their interest.
    Native Law 1995 – Rel. 1

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